Tag: privacy

The City That Never Blinks?

A few points about closed circuit surveillance cameras, since their relative uselessness in the camera-festooned Times Square doesn’t seem to have stemmed the call for yet more cameras as an anti-terror measure.

First, I think it’s helpful to be clear just what we’re talking about when we say “urban surveillance cameras.” Lots of private businesses and apartment buildings have their own cameras trained at least in part on public spaces.  And at this point, most of us are carrying around miniature cameras in our pockets 24/7 as well. I’ve read reports suggesting that the most promising video police obtained  of the suspected bomber came not from the many CCTV cameras the city has in place there, but from a tourist who’d been taping in Times Square. These provide many of the same advantages as official surveillance networks—after a crime occurs, police can obtain and collate footage from the scene from the various owners—without creating a centrally controlled surveillance architecture. For the remainder of the post, I’ll assume “cameras” means just such a citywide network of government controlled cameras, of the sort famously deployed in the U.K. and planned for New York—but it’s worth noting that a city without these kinds of cameras is not necessarily a city without video evidence of crimes.

Second, while there will of course be the odd case one can find where cameras were instrumental in solving a crime, the research that’s been done on public CCTV networks shows tha they’re of stunningly little evidentiary or deterrent value. There are a few specific types of locations where the presence of cameras does seem to reduce, crime, or at least push it elsewhere. They seem to be fairly effective in parking lots. But on the whole, at the city level, they just don’t work very well. In Britain, famously festooned with CCTV cameras, they’re only rarely useful in apprehending street criminals, and the boroughs with more cameras don’t seem to be any better at catching crooks than those with few.  Anecdotal evidence can be beguiling here, because once you’ve created such a system of course the history of a few memorable apprehensions will involve the use of that system.  If we gave cops lassos instead of guns and tasers, they’d end up lassoing a few crooks sooner or later too, but that hardly goes to show lassos are the right tool for the job.

Third, if citywide surveillance cameras are merely ineffective as a response to street crime, they’re ludicrous as a response to the threat of terror. The point is, I think, well illustrated by New York Mayor Michael Bloomberg’s invocation of the 7/7 bombings in London as an argument for installing an elaborate network of CCTV cams in New York: “You don’t want to wait until 52 people are killed here and then say, ‘Oh, now it’s time to do it.’ The trick is to learn by experiences, but it’s other people’s experience you’d like to learn by.” What Bloomberg did not learn from the British experience, alas, is that 52 people were still killed. The billions spent on CCTV did nothing to deter the bombers, nor to disrupt their plan in action.  The Times Square bomber, far from being deterred, chose one of the most recorded locations in the city as his target—and ultimately failed because of his own incompetence, not because of any of the dozens of cameras trained on the Square.

This kind of scenario, incidentally, presents the strongest case for surveillance cameras: A failed attack where you actually have a perpetrator to try and track down after the fact.  London’s cameras did indeed help out on that score after the second, failed attempt at a bomb attack on the transit system: Since they had intended to die with their victims, the terrorists hadn’t bothered with countermeasures like disguises, something that might conceivably occur to a non-suicidal terrorist plotter in the future.  Of course, those failed attackers were also seen by dozens of their intended victims, so there’s little reason to think it would have been impossible to track them down but for the cameras. 

Stipulating that the cameras did add some value in that rather unusual case, though, we need to step back and ask:  Is this really the best security use we can make of a few hundred million dollars per year? An elaborate camera network that doesn’t reduce crime, but might be of marginal benefit in tracking down perps after failed terror attacks by inept bombers?  If we’ve gotten this disconnected from any rational cost/benefit analysis once the word “terrorism” is uttered, let’s just start building enormous mousetraps made of gold and bait them with South Park DVDs; maybe we’ll catch a few jihadis that way.

Finally, there’s the question of privacy, which I leave for last because I don’t actually think you can reject citywide camera networks on security grounds alone. Still, it’s worth pushing back on the notion that there are no privacy concerns worth speaking of because, after all, the cameras are only trained on “public” places.  Lying in the background of that argument is a rather crabbed notion of privacy that Daniel Solove has called the
“secrecy paradigm,” and it assumes that privacy just means limiting the exposure of information that had otherwise been completely secret. But in practice, much of our privacy is not a function of the secrecy of information, but of its searchability and aggregability. There is a world of difference between knowing that any of your public behavior can be observed by others, and knowing that all of it is—that, indeed, a complete record of your public movements and actions can be automatically reconstructed from a central digital archive. Most of us probably don’t mind shopping at “public” pharmacies full of indifferent strangers, but most of us would also be upset if a permanent record of our purchases were posted on the Internet with our names attached. And there’s a difference, again, between merely being recorded and knowing that an automated behavioral analysis algorithm is apt to send up a red flag if any of your actions trigger a program’s definition of “suspicious behavior.”

To the extent that popular privacy discourse is saturated in the secrecy paradigm, it might be better to do away with “privacy” talk altogether, because the exercise of categorizing various kinds of information in a binary public/private schema may help while away the hours on a rainy Sunday, but it’s not ultimately that interesting.  The question we ought to be asking is whether and to what extent monitoring technologies facilitate social control. Sometimes that will be a price worth paying for security, but here, the case is quite weak.

Your Year in Wiretaps

The 2009 Wiretap Report has just been released by the Administrative Office of the U.S. Courts. The headline findings: 2,376 wiretaps were authorized for criminal investigations last year, of which 663 were federal and 1,713 were issued at the state level. (NB: These numbers don’t include Foreign Intelligence Surveillance Act wiretaps, “pen register” requests for communications metadata, or orders to acquire stored e-mails sitting on a server.)  The vast majority of wiretaps—86 percent—were part of the drug war, with the average wiretap bill running about $52,200.

In line with recent years, only about 19 percent of intercepted communications contained anything incriminating. As you can see by eyeballing the chart, the 2009 numbers reflect a sharp 70 percent increase in federal taps over the previous year, but only because 2008 was a decade low-point. Though the number is still relatively high, criminal federal wiretap warrants were long ago eclipsed by broader and more secretive intelligence wiretaps under FISA—of which there were 2,082 in 2008.

Since drug dealers seldom have fixed offices, it probably won’t come as any surprise that 96 percent of the orders targeted mobile devices. Since a full wiretap order also permits the acquisition of the highly detailed GPS information phones can provide, it would be nice to know how many of these orders involve the use of a cell phone as a mobile tracking device.  There’s a campaign underway to update our grossly outdated surveillance laws, and better reporting on this relatively novel form of surveillance should be part of a larger geotracking reform providing a single process and a single clear standard for seeking such information, rather than the patchwork of warrants and other sorts of court orders currently employed.

As another data point for the need to reform federal surveillance law, only four of last year’s orders involved any kind of “electronic communication,” as opposed to traditional voice communications.  Does that mean law enforcement agencies are just ignoring the Internet?  Of course not. But current law, perversely, establishes a much higher standard for the interception of “live” communications in transit over the network than for e-mails that have landed on a user’s server. As soon as you open that e-mail, the level of protection it’s afforded by statute is radically diminished, and the constitutional protections given to stored emails are still embarrassingly unclear, at least as far as the courts are concerned.

The irony here is that the outdated federal surveillance laws actually leave us hard pressed to accurately gauge how badly they’re outdated. The primary problem is that the crazy-quilt of statutes and standards doesn’t map the way people actually communicate today, or line up with their real-world expectations of privacy in those communications. But the secondary problem is that the reporting requirements don’t line up either.  I’m probably a little abnormal here, but I communicate via e-mail, Twitter, or IM vastly more than I talk on the telephone. I send dozens of e-mails on an average day (many from a GPS-enabled phone), but I doubt I average more than one actual voice phone call per week. There are, of course, many reasons to expect criminals to prefer the ephemeral nature of voice communication, but the disconnect still ought to be worrying.  The numbers in the Wiretap Report make us feel as though we have a handle on the scope of government surveillance, when in fact we probably don’t have a very clear picture at all.

Planned Economy, Privacy Problems

If someone asked you what’s wrong with a planned economy, your first answer might not be “privacy.” But it should be. For proof, look no further than the financial regulation bill the Senate is debating. Its 1,400 pages contain strong prescriptions for a government-micromanaged economy—and the undoing of your financial privacy. Here’s a look at some of the personal data collection this revamp of financial services regulation will produce.

The “Office of Financial Research” (sec. 152) will have a “Data Center” (sec. 154) that requires submisson of data on any financial activity that poses a threat to financial stability.

Use your noggin, now: Will government researchers know in advance what might cause financial instability? Will they home in on precisely that? No.

This is government entrée into any financial activities federal bureaucrats suspect might cause instability. It’s carte blanche to examine all financial transactions—including yours. (Confidentiality rules? The better view is that privacy is lost when the government takes data from your control, but we’ll come back to confidentiality.)

The Office of Financial Research is also a sop to industry. Morgan Stanley estimates that it will save the company 20 to 30 percent of its operating costs. The advocates for this bureaucracy want to replace the competitive environment for financial data with a uniform government data platform. Students of technology will instantly recognize what this data monoculture means: If the government’s data and assumptions are bad, everyone’s data and assumptions are bad, and all players in the financial services system fall together. The Office of Financial Research itself poses a threat to financial stability.

But all that’s about money. On with privacy…

The “Bureau of Consumer Financial Protection” (sec. 1011) in the bill is another beetle boring into your personal financial life. Among its mandates is to “gather information … regarding the organization, business conduct, markets, and activities of persons operating in consumer financial services markets” (sec. 1022(c)(4)).

In case you’re wondering, the definition of “person” includes “an individual” (sec. 1002(17)). The Bureau of Consumer Financial Protection can investigate your business conduct and activities.

Come now. All this private data gathering can’t possibly be what they mean to do, can it?

Section 1071(b) requires any deposit-taking financial institution to geo-code customer addresses and maintain records of deposits for at least three years. Think of the government having its own Google map of where you and your neighbors do your banking. The Bureau may “use the data for any other purpose as permitted by law,” such as handing it off to other bureaus, like the Federal Bureau of Investigation.

Still, that’s really not what the Bureau of Consumer Financial Protection is supposed to be about, is it? It can’t be!

It’s not. Nor was the Social Security number about creating a uniform national identifier that facilitates both lawful (excessive) data collection and identity fraud. The construction of surveillance infrastructure doesn’t turn on the intentions of its builders. They’re just giving another turn to the wheels that crush privacy.

Promises of confidentiality and “de-identified” data are not reassuring. It’s getting harder and harder to collect data that are not personally identifiable. Latanya Sweeney’s 2002 “k-anonymity” paper is best known for establishing how anonymous data can be “re-identified,” unraveling promised confidentiality and privacy.

Just a few “anonymous” data points can pick out individuals. Data-driven triangulation on individuals will get easier as data collection grows society-wide. Confidentiality rules in the bill will tend to fail over time, if they’re not simply reversed when some future exigency demands it. If we’re to maintain privacy, government data collection should be shrinking, not growing.

How do you manage an economy from the top? You collect data. Thanks to computing and communications, there are lots of data available nowadays. Maybe the failed Progressive-Era dream of “scientific government” has been revitalized by the idea that data can shore up regulation’s natural defects.

My colleague Mark Calabria has investigated and drawn into question whether it was a lack of consumer protection that caused the financial crisis. But Washington, D.C. has determined that Washington, D.C. should manage the financial services industry. Your personal and private financial affairs will be managed there too.

McCotter’s Plan to Expand DMCA-Style Take-Downs

The “Cyber Privacy Act”? No it ain’t!

Michigan Representative Thaddeus McCotter (R) has introduced a bill to create a take-down regime for personal information akin to the widely abused DMCA process. The Digital Millennium Copyright Act established a system where copyright holders could as a practical matter force content off the Internet simply by requesting it.

McCotter’s proposal would similarly regulate every Internet site that has a comment section. He thinks it’s going to protect privacy, but he’s sorely mistaken. Its passage would undermine privacy and limit free speech.

I’ll take you through how McCotter’s gotten it wrong.

The operative language of H.R. 5108 is:

Any Internet website that makes available to the public personal information of individuals shall–

(1) provide, in a clear and conspicuous location on the Internet website, a means for individuals whose personal information it contains to request the removal of such information; and

(2) promptly remove the personal information of any individual who requests its removal.

The Federal Trade Commission would enforce the failure to abide by requests as it does unfair and deceptive trade practices. (Meaning: penalties.)

So if someone posts his or her name in a comment section and later regrets it, the operator of that web site would have to take it down. Sounds nice—and that is the right thing for webmasters to do when the circumstances warrant. But what about when they don’t?

Let’s say you run a site that receives hundreds or thousands of comments per day, many of them from anonymous visitors. Let’s say the site deals with controversial issues, and some visitors are angry at each other—they’re even angry at the site for hosting the discussion. Those visitors start working to undermine the conversation. They personally attack others, adopt false names, tell lies, and use vulgarities. This kind of person is well known on the web. They’re called “trolls.”

What would trolls do if federal law required webmasters to take down personal information by request? Simple: They would post the personal information of others. They would pose as others and falsely ask to have information taken down.

It’s a great way to attack a site: require it to consider hundreds or thousands of personal information take-down requests, each one backed by the threat of federal penalties.

What do you do as a webmaster to counter that? You require all comments to be tied to a fixed identity. Require a log-in before site visitors can comment. Then you can figure out later if the person requesting a take-down of personal information is the person who it pertains to.

What’s the result of that? Web sites collect and store more information about visitors. Then they turn around and use it for tracking and marketing. The information is available to litigators and government investigators, of course, through subpoenas and warrants.

Are you doing the math? McCotter’s “Cyber Privacy” bill is a proposal to increase Internet surveillance. Maybe he intends to improve Internet courtesy and decency. But decency is not a federal government project. It’s bottom-up, not top-down.

I write, of course, as a spare-time webmaster myself. The bills on WashingtonWatch.com get hundreds of comments per day. Many bills get lots of comments, but one in particular—subject of dispute, controversy, and trolling, along with productive political organizing—has over 130,000 comments.

I do a lot to foster a good visitor experience, consistent with maintaining the space available for free speech. I advise people about how to deal with trolls, I allow people to register so their stable identities can build trustworthy reputations, I proctor commenters about controlling vulgarities—sometimes strongly editing comments when they don’t, and I allow users to block commenters and words they don’t want to see.

When the context warrants it, I do remove personal information at the request of people that I believe are making honest, good faith requests. I think it’s part of what builds allegiance to the site.

But if I were required by law to do this, it would be an entirely different calculation. Each request would present me with a veiled legal threat, not a small customer service opportunity.

As trolls figured out how to exploit the law—the way some copyright holders exploit the DMCA—they could inundate small sites with requests. Webmasters would be right to treat all requests with suspicion. Confirming requests would require them to convert to greater surveillance. A percentage of the small sites and blogs that are hobbies or money-losers would just shut down comments rather than deal with the nonsense.

Representative McCotter’s plan to regulate Internet communications this way is no “Cyber Privacy” act. It’s anti-privacy, and it’s anti-free-speech.

How Much Government Snooping? Google It Up!

The secrecy surrounding government surveillance is a constant source of frustration to privacy activists and scholars: It’s hard to have a serious discussion about policy when it’s like pulling teeth to get the most elementary statistics about the scope of state information gathering, let alone any more detailed information. Even when reporting is statutorily required, government agencies tend to drag their heels making statistics available to Congress – and it can take even longer to make the information more widely accessible. Phone and Internet companies, even when they join the fight against excessive demands for information, are typically just as reluctant to talk publicly about just how much of their customers’ information they’re required to disclose. That’s why I’m so pleased at the news that Google has launched their Government Requests transparency tool.  It shows a global map on which users can see how many governmental demands for user information or content removal have been made to Google’s ever-growing empire of sites – now including Blogger, YouTube, and Gmail – starting with the last six months.

So far, the information up there is both somewhat limited and lacking context.  For instance, it might seem odd that Brazil tops the list of governmental information hounds until you bear in mind that Google’s Orkut social network, while little-used by Americans, is the Brazilian equivalent of Facebook.

There are also huge gaps in the data: The United States comes in second with 3,580 requests from law enforcement at all levels, but that doesn’t include intelligence requests, so National Security Letters (tens of thousands of which are issued every year) and FISA warrants or “metadata” orders (which dwarf ordinary federal wiretaps in number) aren’t part of the tally. And since China considers all such government information requests to be state secrets – whether for criminal or intelligence investigations – no data from the People’s Republic is included.

Neither is there any detail about the requests they have counted – how many are demands for basic subscriber information, how many for communications metadata, and how many for actual e-mail or chat contents. The data on censorship is similarly limited: They’re counting governmental but not civil requests, such as takedown notices under the Digital Millennium Copyright Act.

For all those limits – and the company will be striving to provide some more detail, within the limits of the law – this is a great step toward bringing vital transparency to the shadowy world of government surveillance, and some nourishment to the data-starved wretches who seek to study it. We cannot have a meaningful conversation about whether censorship or invasion of privacy in the name of security have gone too far if we do not know, at a minimum, what the government is doing. So, for a bit of perspective, we know that U.S. courts reported a combined total of 1,793 (criminal, not intel) wiretaps sought by both federal and state authorities. Almost none of these (less than 1 percent) were for electronic interception.

This may sound surprising, unless you keep in mind that federal law establishes a very high standard for the “live” interception of communications over a wire, but makes it substantially easier – under some circumstances rather terrifyingly easy – to get stored communications records. So there’s very little reason for police to jump through all the hoops imposed on wiretap orders when they want to read a target’s e-mails.

If and when Google were to break down that information about requests – to show how many were “full content” as opposed to metadata requests – we would begin to have a far more accurate picture of the true scope of governmental spying. Should other major players like Yahoo and Facebook be inspired to follow Google’s admirable lead here, it would be better still.  Already, though, that one data point from a single company – showing more than twice as many data requests as the total number of phone wiretaps reported for the entire country – suggests that there is vastly more actual surveillance going on than one might infer from official wiretap numbers.

TLJ on Justice Stevens’ Tech Influence

TechLawJournal has a thorough analysis of Justice John Paul Stevens’ opinions in technology-related areas. I reproduce it here with permission. (Tim Lee’s earlier about Justice Stevens’ legacy in tech is here.)

Justice John Paul Stevens, who has served on the Supreme Court since 1975, announced on April 9, 2010, that he will retire when the Court completes its current term this summer. This article reviews his contributions to technology related areas of law.

Outline of Article:
1. Summary.
2. Copyright Cases.
3. State Immunity in IPR Cases.
4. Patent Cases.
5. Communications Cases.
6. Internet Speech Cases.
7. Privacy Cases.
8. Other Cases.

1. Summary.

Justice Stevens wrote the majority opinion in the 1984 landmark Sony Betamax case. It was a 5-4 opinion. He joined in the unanimous 2005 opinion in MGM v. Grokster, regarding vicarious copyright infringement by the distributors of peer to peer systems. He wrote a long and vigorous dissent in Eldred, the 7-2 case regarding the Copyright Term Extension Act.

Justice Stevens led the fight against extending sovereign immunity to states for violation of, among other things, intellectual property laws. He dissented from the outset, and never considered the Court to be constrained by the doctrine of stare decisis. However, his concern was with the conservatives’ interpretation of states rights, not incenting the creation of intellectual property.

Justice Stevens wrote for a unanimous Court in Illinois Tools Works v. Independent Ink. Otherwise, he has not been active in writing opinions in patent cases in recent years.

Justice Stevens has been an ardent advocate of freedom of speech on the internet. He wrote the majority opinion in Reno v. ACLU in 1997, overturning the censoring provisions of the Communications Decency Act. He dissented from the Court’s 2003 opinion in US v. American Library Association upholding the Children’s Internet Protection Act (CIPA), which required filtering on certain government subsidized computers. He wrote a concurring opinion in 2004 in Ashcroft v. ACLU, holding unconstitutional the Child Online Protection Act (COPA).

Justice Stevens’ dedication to freedom of speech also led him to write the majority opinion in 2001 in Bartnicki v. Vopper, which limited electronic privacy and condoned violation of the Wiretap Act.

However, he reiterated his slight regard for privacy and Fourth Amendment rights by authoring the dissent in 2001 in Kyllo v. U.S, a case holding that the thermal imaging of a home to detect lamps used for growing marijuana constitutes a search within the meaning of the Fourth Amendment.

Justice Stevens has not been active in writing majority or dissenting opinions in communications law cases. However, last year in a dissent in FCC v. Fox, he wrote a significant explanation of the nature of the administrative process. He presented an explanation of the FCC as an agent of the Congress.

Finally, Justice Stevens should be remembered for authoring the Court’s 1984 opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837. This is not a communications or technology case. However, this case regarding administrative procedure gives the Federal Communications Commission (FCC) wide latitude to write regulations that give wild and implausible interpretations to federal statutes.

2. Copyright Cases.

Justice Stevens has not been a consistent supporter of the copyright based industries. He wrote the majority opinion in the Sony Betamax case, and wrote a vehement dissent in Eldred, the Copyright Term Extension Act case. On the other hand, he has been the Court’s most active critic of the line of cases granting states immunity in intellectual property cases.

Sony. Justice Stevens wrote for the majority in the Court’s 1984 5-4 opinion in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417.

He wrote that the “sale of video cassette recorders (“VCR´´s) did not subject Sony to contributory copyright liability, even though Sony knew as a general matter that the machines could be used, and were being used, to infringe the plaintiffs’ copyrighted works. Because video tape recorders were capable of both infringing and “substantial noninfringing uses,´´ generic or “constructive´´ knowledge of infringing activity was insufficient to warrant liability based on the mere retail of Sony’s products.”

MGM v. Grokster. Justice Stevens joined in, but did not write, the Supreme Court’s unanimous 2005 opinion [55 pages in PDF] in MGM v. Grokster, 545 U.S. 913.

In this case, the Court reversed the judgment of the U.S. Court of Appeals (9thCir) regarding vicarious copyright infringement by the distributors of peer to peer systems. The Supreme Court held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” See, story titled “Supreme Court Rules in MGM v. Grokster” in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

Copyright Term Extension Act. Justice Ginsburg wrote for the majority in the Court’s 2003 7-2 opinion in Eldred v. Ashcroft, 537 U.S. 186. This opinion upheld the constitutionality of the Copyright Term Extension Act (CTEA), which retroactively extended the maximum duration of copyrights. See also, story titled “Supreme Court Upholds CTEA in Eldred v. Ashcroft” in TLJ Daily E-Mail Alert No. 584, January 16, 2003.

Both Breyer and Stevens dissented. Stevens wrote a long and emphatic criticism of the CTEA and the majority opinion. He stated that “By failing to protect the public interest in free access to the products of inventive and artistic genius – indeed, by virtually ignoring the central purpose of the Copyright/Patent Clause – the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress’ actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable. That result cannot be squared with the basic tenets of our constitutional structure. It is not hyperbole to recall the trenchant words of Chief Justice John Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.´´ Marbury v. Madison …”

Fair Use and Copying of Unpublished Works. Justice O’Connor wrote for the majority, which Justice Stevens joined, in the 1985 6-3 opinion in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539. The Court held that the unpublished state of a work of authorship may defeat the affirmative defense of fair use.

Database Protection. Justice O’Connor wrote the 8-0-1 1991 opinion in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340. Justice Stevens joined in O’Connor’s opinion. Justice Blackmun concurred without writing an opinion. The Court held that collections of data, such as electronic databases, are generally not subject to copyright protection.

Fair Use and Parody. Justice Souter wrote the unanimous 1984 opinion in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1984). Justice Stevens joined in this opinion. This was the dispute involving the hideous and commercial parody of Roy Obison’s classic titled “Oh, Pretty Woman”. The Court reversed the Court of Appeals, which had held that the defense of fair use was barred by the song’s commercial character and excessive borrowing.

3. State Immunity in IPR Cases.

In the late 1990s the Supreme Court held in a series of 5-4 opinions that states have immunity from suits for money judgments in federal court for violation of intellectual property and other statutes. The Court’s reasoning was weak and tenuous at best. Several Justices, including Stevens, continuously dissented.

Stevens’ retirement from the Court removes one vote towards a five member majority for reversing or limiting this line of cases. There were once four consistent votes against state sovereign immunity in IP cases: Stevens, Souter, Ginsburg and Breyer. Souter was replaced by Justice Sonia Sotomayor last year. Now Justice Stevens in leaving. There remain three consistent votes in favor of state sovereign immunity: Scalia, Thomas and Kennedy.

Obama, both as Senator and President, has not shown any particular affinity for the doctrine of states rights. Moreover, his judicial appointments to date, and especially Justice Sotomayor and his Second Circuit appointments, suggest that he will be sympathetic to the interests of the copyright industries.

Former Chief Justice William Rehnquist wrote the majority opinion in the seminal case of Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). This case involves the Indian Gaming Regulatory Act and the Indian Commerce clause of the constitution. He wrote that the Congress lacks authority under Article I of the Constitution to abrogate the states’ 11th Amendment immunity from suit in federal courts. However, its holding regarding the abrogation of state sovereign immunity serves as the precedent for similar cases involving intellectual property. This was a 5-4 opinion.

Stevens wrote in his dissent that “This case is about power – the power of the Congress of the United States to create a private federal cause of action against a State, or its Governor, for the violation of a federal right.” He wrote that the majority opinion “prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.”

Stevens argued that “There may be room for debate over whether, in light of the Eleventh Amendment, Congress has the power to ensure that such a cause of action may be enforced in federal court by a citizen of another State or a foreign citizen. There can be no serious debate, however, over whether Congress has the power to ensure that such a cause of action may be brought by a citizen of the State being sued. Congress’ authority in that regard is clear.”

Next came Rehnquist’s opinion in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), invalidating the Patent and Plant Variety Protection Remedy Clarification Act. This too was a 5-4 opinion. Justice Stevens wrote the long and strenuous dissenting opinion, joined by Justices Breyer, Ginsburg, and Souter.

At the same time, the Court issued its opinion in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999), invalidating the Trademark Remedy Clarification Act. Scalia wrote this 5-4 opinion. Both Justice Stevens and Justice Breyer wrote dissenting opinions.

As a result of these cases, states can hold intellectual property, and enforce their intellectual property rights in federal court. At the same same, states are in effect free to steal the intellectual property of others, without fear of a money judgments against them. Some states infringe intellectual property rights, hide behind 11th Amendment immunity, and lobby their Senators to block legislation that would remedy this situation.

In 2006 the Supreme Court issued its opinion in Central Virginia Community College v. Katz, 546 U.S. 356. This is an 11th Amendment case involving the Bankruptcy Code’s treatment of preferential transfers by a debtor to state entities. The Supreme Court held, 5-4, that the Congress can abrogate state sovereign immunity in the Bankruptcy Code. However, its analysis is equally applicable to the Patent Act or Copyright Act.

Justice Stevens wrote the majority opinion. He commanded a majority because Justice O’Connor switched sides. This opinion cannot be reconciled with the 1990s IP opinions.

See also, story titled “Supreme Court Rules in State Sovereign Immunity Case” in TLJ Daily E-Mail Alert No. 1,295, January 24, 2006. See also, story titled “Supreme Court Grants Certiorari in State Sovereign Immunity Case” in TLJ Daily E-Mail Alert No. 1,109, April 5, 2005.

Some members of Congress attempted to remedy this situation by legislation. However, they failed. See, stories titled “Legislators Introduce Bills to Address Infringement by States” in TLJ Daily E-Mail Alert No. 302, November 6, 2001; “Sen. Leahy Reintroduces Bill to Close 11th Amendment Loophole to IPR” in TLJ Daily E-Mail Alert No. 394, March 22, 2002; “Senate Judiciary Committee Considers Federalism and Intellectual Property” in TLJ Daily E-Mail Alert No. 522, October 3, 2002; and “Legislators Re-Introduce Bills to Address State IPR Sovereign Immunity” in TLJ Daily E-Mail Alert No. 680, June 13, 2003.

4. Patent Cases.

Justice Stevens wrote for a unanimous Court in Illinois Tools Works v. Independent Ink. Otherwise, he has not been active in writing opinions in patent cases in recent years.

Illinois Tools Works v. Independent Ink. Justice Stevens wrote the unanimous March 1, 2006, opinion [20 pages in PDF] of the Supreme Court in Illinois Tool Works v. Independent Ink, a patent tying antitrust case. See, story titled “Supreme Court Vacates in Patent Tying Antitrust Case” in TLJ Daily E-Mail Alert No. 1,321, March 2, 2006.

The Supreme Court vacated the judgment of the U.S. Court of Appeals (FedCir) and remanded. The Court of Appeals held in January of 2005 that “a rebuttable presumption of market power arises from the possession of a patent over a tying product”.

The Supreme Court concluded that “Congress, the antitrust enforcement agencies, and most economists have all reached the conclusion that a patent does not necessarily confer market power upon the patentee. Today, we reach the same conclusion, and therefore hold that, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product.”

eBay v. MercExchange. Justice Thomas wrote the unanimous opinion in 2006 in eBay v. MercExchange, 547 U.S. 388. Justice Stevens joined in this opinion, and in a concurring opinion written by Kennedy. The Court held that the traditional four factor framework that guides a court’s decision whether to grant an injunction applies in patent cases. See, story titled “Supreme Court to Consider Availability of Injunctive Relief in Patent Cases” in TLJ Daily E-Mail Alert No. 1,261, November 29, 2005, and story titled “Supreme Court Rules on Availability of Injunctive Relief in Patent Cases” in TLJ Daily E-Mail Alert No. 1,371, May 16, 2006.

Patent Obviousness. Justice Kennedy wrote the unanimous 2007 opinion in KSR International v. Teleflex, 550 U.S. 398. Justice Stevens joined in this opinion. See, story titled “Supreme Court Rules on Patent Obviousness in KSR v. Teleflex” in TLJ Daily E-Mail Alert No. 1,576, May 7, 2007.

MedImmune v. Genentech. Justice Scalia wrote for the majority in the Court’s 2007 8-1 opinion in MedImmune v. Genentech, 549 U.S. 118. Justice Stevens joined in Scalia’s opinion. Justice Thomas wrote a dissent. This is a case regarding when a patent can be challenged by a licensee in a declaratory judgment action. See, story titled “Supreme Court Rules on Case or Controversy Requirement in Patent Litigation” in TLJ Daily E-Mail Alert No. 1,516, January 9, 2007.

Doctrine of Equivalents. Justice Kennedy wrote the unanimous 2002 opinion in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722. Justice Stevens joined in that opinion. The Court again affirmed the doctrine of equivalents, articulated its purpose, held that the narrowing of a patent claim may give rise to prosecution history estoppel (but that it does not absolutely bar application of the doctrine of equivalents), and listed circumstances under which it might or might not operate as a bar. See also, story titled “Supreme Court Reverses in Festo Case” in TLJ Daily E-Mail Alert No. 439, May 29, 2002.

Carlsbad Technology v. HIF Bio. Justice Thomas wrote the unanimous 2009 opinion in Carlsbad Technology v. HIF Bio, 556 U.S. __. This is a case regarding federal appellate court jurisdiction. Stevens wrote one of three concurring opinion. See, story titled “Supreme Court Reverses in Carlsband Technology v. HIF Bio” in TLJ Daily E-Mail Alert No. 1,934, May 5, 2009.

5. Communications Cases.

Justice Stevens has not been active in writing majority or dissenting opinions in communications cases.

However, in 2009 he wrote a dissent in a broadcast case in which he made a key observation about the nature of the administrative process. He also wrote that the FCC is essentially “an agent of Congress” to which the Congress delegates legislative authority to write rules that “reflect the views of the Congress”.

Section 251 Regulation. Justice Stevens joined in Justice Scalia’s majority opinion in 1999 in AT&T v. Iowa Utilities Board, 525 U.S. 366.

FCC Price Regulation. Justice Stevens joined with the majority in the Court’s 2002 5-3 opinion in Verizon v. FCC, 535 U.S. 467, upholding the FCC’s rules regarding how incumbent local exchange carriers (ILECs) charge interexchange carriers (IXCs) and competitors local exchange carriers (CLECs) for access to their facilities. See, story titled “Supreme Court Upholds FCC Pricing Rules” in TLJ Daily E-Mail Alert No. 431, May 14, 2002.

Antitrust and Telecom: Trinko. Justice Scalia wrote the 2004 opinion in Verizon v. Trinko, 540 U.S. 398, holding that a claim alleging a breach of an ILEC’s duty under the 1996 Telecom Act to share its network with competitors does not state a violation of Section 2 of the Sherman Act.

Justice Stevens wrote a separate opinion “concurring in the judgment” of the Court. Justices Souter and Thomas joined. Stevens wrote that it was AT&T, and not Trinko, who was injured by Verizon’s conduct, and therefore, under the Sherman and Clayton Acts, only AT&T has standing to raise the antitrust claim. Stevens concluded “I would not decide the merits of the § 2 claim unless and until such a claim is advanced by either AT&T or a similarly situated competitive local exchange carrier.”

See also, story titled “Supreme Court Holds That There is No Sherman Act Claim in Verizon v. Trinko” in TLJ Daily E-Mail Alert No. 815, January 14, 2004.

Antitrust and Telecom: Pacific Bell v. Linkline. Chief Justice Roberts wrote for the majority in the 2009 5-4 opinion in Pacific Bell v. Linkline, 555 U.S. __. Justice Breyer wrote a concurring opinion, joined by Stevens, Souter and Ginsburg.

This issue was whether “a plaintiff states a claim under Section 2 of the Sherman Act by alleging that the defendant – a vertically integrated retail competitor with an alleged monopoly at the wholesale level but no antitrust duty to provide the wholesale input to competitors – engaged in a “price squeeze´´ by leaving insufficient margin between wholesale and retail prices to allow the plaintiff to compete.” The majority held not. The four concurring justices would have sent the case back to the District Court to consider a predatory pricing claim.

See, stories titled “Supreme Court Reverses in Pacific Bell v. Linkline”, “Supreme Court: There Is Robust Competition in the Broadband Market”, and “Commentary: Impact of Pacific Bell v. LinkLine” in TLJ Daily E-Mail Alert No. 1,906, February 27, 2009.

State Statutes that Bar Local Governments from Providing Telecom Services. Justice Souter wrote the 2004 opinion in Nixon v. Missouri Municipal League, 541 U.S. 125. This is a case regarding 47 U.S.C. § 253(a) and state statutes that prohibit political subdivisions from offering telecommunications services. Missouri passed a state statute that bans local governments in Missouri from offering telecommunications services. The local governments, represented by the Missouri Municipal League, wanted the Federal Communications Commission (FCC) to preempt this statute, under Section 253, which provides that states cannot ban “any entity” from providing telecommunications services. It has always been clear that Section 253 means that states cannot bar any company from providing telecommunications services. The question was, does Section 253 also include local governments. The FCC said no. The 8th Circuit said yes. The Supreme Court said no. Of course, this does not mean that states must bar local governments from providing telecommunications services. This opinion only stands for the proposition that states may bar local governments from providing telecommunications services.

Justice Stevens wrote a solo dissent. He would have affirmed the judgment of the 8th Circuit. See also, story titled “Supreme Court Reverses in Nixon v. Missouri” in TLJ Daily E-Mail Alert No. 864, March 26, 2004.

Cell Towers. Justice Scalia wrote the 2005 opinion in Rancho Palos Verdes v. Abrams, 544 U.S. 113, holding that an individual who brings an action to enforce the limitations on state and local authority to regulate the location, construction, and modification of wireless communications facilities under 47 U.S.C. § 332, cannot also recover damages under 42 U.S.C. § 1983.

Justice Stevens wrote a solo concurring opinion. He concurred with the Court’s conclusion as to Section 332. However, he wrote that the Court has not “properly acknowledged the strength of our normal presumption that Congress intended to preserve, rather than preclude, the availability of §1983 as a remedy for the enforcement of federal statutory rights.”

See also, story titled “Supreme Court Holds That Individuals Who Sue Under §332 Cannot Also Recover Damages Under §1983” in TLJ Daily E-Mail Alert No. 1,101, March 23, 2005.

Broadband Internet Access Service. Justice Stevens joined with the majority in the Court’s 2005 opinion [59 pages in PDF] in NCTA v. Brand X, 545 U.S. 967. This opinion upheld the FCC’s determination that cable broadband internet access service is an information service. Justice Thomas wrote the opinion of the Court.

Justice Stevens wrote a two sentence solo concurring opinion in which he commented on Chevron deference. He wrote that Justice Thomas’s opinion “correctly explains why a court of appeals’ interpretation of an ambiguous provision in a regulatory statute does not foreclose a contrary reading by the agency. That explanation would not necessarily be applicable to a decision by this Court that would presumably remove any pre-existing ambiguity.”

See also, story titled “Supreme Court Rules in Brand X Case” in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

FCC Regulation of Broadcast Speech. Justice Scalia wrote for the majority in the 2009 5-4 opinion [PDF] in FCC v. Fox Television Stations, 556 U.S. __. In this case, the FCC issued an order that fined broadcasters for fleeting expletives. The Court of Appeals vacated and remanded, on the grounds that the FCC’s new fleeting expletives policy is arbitrary and capricious under the Administrative Procedure Act (APA) for failing to articulate a reasoned basis for the change in policy. The Supreme Court reversed on the basis APA does not preclude unexplained shifts of long standing policy.

Justice Stevens joined in the dissent. See, story titled “Supreme Court Reverses in FCC v. Fox” in TLJ Daily E-Mail Alert No. 1,932, April 28, 2009.

FCC Rulemaking Process. In FCC v. Fox Television Stations, Justice Stevens also wrote a solo opinion that delved into the nature of the administrative process.

“Apparently assuming that the Federal Communications Commission’s … rulemaking authority is a species of executive power, the Court espouses the novel proposition that the Commission need not explain its decision to discard a longstanding rule in favor of a dramatically different approach to regulation.” He continued that the Constitution disperses the federal power among the three branches –legislative, the executive, and judicial. Moreover, “Strict lines of authority are particularly elusive when Congress and the President both exert a measure of control over an agency.”

But, he wrote that “when Congress grants rulemaking and adjudicative authority to an expert agency composed of commissioners selected through a bipartisan procedure and appointed for fixed terms, it substantially insulates the agency from executive control.”

“Just as the FCC’s commissioners do not serve at the will of the President”, Stevens wrote, “its regulations are not subject to change at the President’s will. And when the Commission fashions rules that govern the airwaves, it exercises legislative power delegated to it by Congress.”

Justice Stevens, quoting from the Supreme Court’s 1935 opinion in Humphrey’s Executor v. U.S., 295 U.S. 602, stated that “the FCC “cannot in any proper sense be characterized as an arm or an eye of the executive´´ and is better viewed as an agent of Congress established “to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative … aid.´´”

“There should be a strong presumption that the FCC’s initial views, reflecting the informed judgment of independent commissioners with expertise in the regulated area, also reflect the views of the Congress”, opined Stevens.

6. Internet Speech Cases.

Communications Decency Act. Justice Stevens wrote for the majority in the 1997 7-2 opinion in Reno v. ACLU, 521 US 845. This case held that the Communications Decency Act (CDA) is unconstitutional under the First Amendment. All of the Justices, except Rehnquist and O’Connor joined.

Internet Filtering. Justice Rehnquist wrote for the majority in the 2003 opinion in US v. American Library Association, 539 U.S. 194. This case upheld the constitutionality of the Children’s Internet Protection Act (CIPA), which provides that for libraries to receive federal subsidies or grants, they must use internet filtering technologies. Justice Stevens wrote a dissent.

The CIPA statute, which was enacted by the 106th Congress, requires schools and libraries receiving e-rate subsidies, pursuant to a Federal Communications Commission (FCC) program loosely based on 47 U.S.C. § 254(h)(1)(B), and libraries receiving grants under the Library Services and Technology Act (LSTA) (20 U.S.C. § 9101 et seq.), as a condition for receiving subsidies or grants, to use filtering technologies on computers with internet access that are used by children, and to filter images that constitute obscenity or child pornography.

A three judge panel of the U.S. District Court (EDPa) held the statute unconstitutional as a violation of the First Amendment. It held that filtering software is a content based restriction on access to a public forum, and is therefore subject to the strict scrutiny test – that is, it must be necessary to achieve a compelling governmental interest, and be narrowly tailored to further that interest. The District Court held that the federal government has a compelling interest in preventing the dissemination of obscenity, child pornography, or, in the case of minors, material harmful to minors. However, it found that mandating the use of filters is not narrowly tailored to further those interests.

The Supreme Court reversed. Justices wrote several opinions. No one opinion was joined by a majority of the Court. However, six Justices joined in opinions stating that the CIPA is constitutional. Rehnquist wrote an opinion that was joined by Justices O’Connor, Scalia and Thomas. In addition, Justice Kennedy wrote an opinion, that was joined by Justice Breyer, that concurred as to the judgment of constitutionality, but offered a different analysis.

Rehnquist first reviewed the nature of internet access and filtering software. He wrote “there is also an enormous amount of pornography on the Internet, much of which is easily obtained. … The accessibility of this material has created serious problems for libraries, which have found that patrons of all ages, including minors, regularly search for online pornography. … Some patrons also expose others to pornographic images by leaving them displayed on Internet terminals or printed at library printers. … Upon discovering these problems, Congress became concerned that the E-rate and LSTA programs were facilitating access to illegal and harmful pornography.”

Justice Stevens wrote in his dissent that “it is neither inappropriate nor unconstitutional for a local library to experiment with filtering software as a means of curtailing children’s access to Internet Web sites displaying sexually explicit images. … Whether it is constitutional for the Congress of the United States to impose that requirement … raises a vastly different question.”

He wrote that “Because the software relies on key words or phrases to block undesirable sites, it does not have the capacity to exclude a precisely defined category of images.” He stated that it both underblocks, by allowing undesirable sites through, and overblocks, by blocking non-objectionable web sites.

He wrote that “the software’s reliance on words to identify undesirable sites necessarily results in the blocking of thousands of pages that “contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies’ category definitions, such as `pornography´ or `sex.´ ´´ … In my judgment, a statutory blunderbuss that mandates this vast amount of “overblocking´´ abridges the freedom of speech protected by the First Amendment.”

See also, story titled “Supreme Court Upholds Children’s Internet Protection Act” in TLJ Daily E-Mail Alert No. 686, June 24, 2003.

COPA. Justice Kennedy wrote the opinion of the Court, in which Justice Stevens joined, in the 2004 5-4 opinion in Ashcroft v. ACLU, 542 U.S. 656. This was a a constitutional challenge to the Child Online Protection Act (COPA). Stevens also wrote a concurring opinion.

The COPA provided, in part, that “Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.”

The COPA further provided that “It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors … by requiring use of a credit card”.

The District Court issued a preliminary injunction of the COPA. The U.S. Court of Appeals (3rdCir) affirmed. The Supreme Court affirmed the issuance of the preliminary injunction, and remanded.

In addition, Justice Stevens wrote a concurring opinion in which Justice Ginsburg joined. He wrote that “I continue to believe that the Government may not penalize speakers for making available to the general World Wide Web audience that which the least tolerant communities in America deem unfit for their children’s consumption, … and consider that principle a sufficient basis for deciding this case.”

He added that “encouraging deployment of user-based controls, such as filtering software, would serve Congress’ interest in protecting minors from sexually explicit Internet materials as well or better than attempting to regulate the vast content of the World Wide Web at its source, and at a far less significant cost to First Amendment values.”

See also, story titled “Supreme Court Affirms Preliminary Injunction of COPA” in TLJ Daily E-Mail Alert No. 928, June 29, 2004.

7. Privacy Cases.

Electronic Privacy. Justice Stevens wrote for the majority in the Supreme Court 2001 6-3 opinion in Bartnicki v. Vopper, 532 U.S. 514. The Court held that a radio host cannot be sued under 18 U.S.C. § 2511 for playing an audio recording of a cellular telephone conversation, despite a federal statute that made illegal both the interception of the conversation, and its disclosure.

Justice Stevens reasoned that the case pitted statutes banning disclosure of illegally obtained electronic communications against the First Amendment freedom of speech claims of persons with illegally obtained recordings to disclose them if their content pertains to a public issue.

While Justice Stevens and the majority may have defended First Amendment rights, they did so at the expense of privacy rights. See also, story titled “Supreme Court Diminishes Electronic Privacy” in TLJ Daily E-Mail Alert No. 192, May 22, 2001.

Thermal Imaging. Justice Scalia wrote for the majority in the Court’s 5-4 2001 opinion in Kyllo v. U.S., 533 U.S. 27. The majority held that the thermal imaging of a home to detect lamps used for growing marijuana constitutes a search within the meaning of the Fourth Amendment. The Court further held that such searches are unreasonable under the Fourth Amendment unless supported by probable cause and authorized by a warrant.

Justice Stevens wrote the dissenting opinion, which was joined by Rehnquist, O’Connor and Kennedy. He reasoned that the police did not enter the house search, so there was no search. Under this reasoning, police computer intrusions, or searches of files stored in the cloud, would not be protected by the 4th Amendment.

8. Other Cases.

Internet Wine Sales. Justice Kennedy wrote for the majority in the Court’s 2005 5-4 opinion in Granholm v. Heald, 544 U.S. 460. Justice Stevens wrote one of two dissents.

The Court held that Michigan’s and New York’s regulatory schemes that permit in-state wineries directly to ship alcohol to consumers, but restrict the ability of out-of-state wineries to do so, violate the dormant commerce clause. See also, story titled “Supreme Court Rules in Internet Wine Sales Case” in TLJ Daily E-Mail Alert No. 1,137, May 17, 2005.

The commerce clause is one of the few legal defenses that internet retailers have against burdensome, protectionist, and technophobic state regulators.

While Stevens would have allowed the protectionist state statutes to stand, his argument was limited to wine sales, which is also affected by the 21st Amendment. He wrote that “The New York and Michigan laws challenged in these cases would be patently invalid under well settled dormant Commerce Clause principles if they regulated sales of an ordinary article of commerce rather than wine.”

Trademark: Reverse Passing Off. Justice Scalia wrote the 8-0 2003 opinion in Dastar v. Twentieth Century Fox, 540 U.S. 806. Justice Stevens joined in this opinion. The defendant copied a work whose copyright had expired, and failed to attribute its origin. The plaintiff alleged that its work of authorship was copied (which can be actionable under the Copyright Act), but instead proceeded on the legal theory of violation of the Lanham Act’s false designation of origin provision. Passing off occurs when a producer misrepresents his own goods or services as someone else’s. Reverse passing off occurs when a producer misrepresents someone else’s goods or services as his own. Both can be actionable under the Lanham Act, which makes actionable not only the misleading use of marks, but also the false designation of origin of goods. The lower courts ruled for the producer. The Supreme Court reversed. It held that this is not the purpose of the Lanham Act. Moreover, allowing this sort of use of the Lanham Act would have the impermissible effect of creating perpetual quasi patents and copyrights. See also, story titled “Supreme Court Reverses in Dastar v. Fox” in TLJ Daily E-Mail Alert No. 672, June 3, 2003.

Computer Generated Images. Justice Stevens joined with the majority in the Court’s 2002 opinion in Ashcroft v. Free Speech Coalition, 535 U.S. 234, a case involving a constitutional challenge to part of the Child Pornography Prevention Act of 1996 (CPPA). The Court ruled that provisions of the statute banning computer generated images depicting minors engaging in sexually explicit conduct is overbroad, and violates the First Amendment. See also, story titled “Supreme Court Upholds Speech Rights of Child Pornographers” in TLJ Daily E-Mail Alert No. 412, April 17, 2002. The Congress then rewrote the statute at issue.